*2 delphia, territory Pa. Its is divided regions per- into three Subin, Orlando, Eli Fla., for de- H. region sonnel administration. Each' fendant-appellant. by headed personnel a director who oversees Pincus, Grove, Kalvin Richard M. S. files in his area. Chicago, 111.,for Retail Fed- American Depart- Fields’ Industrial Relations eration, amicus curiae. person- ment in New York all maintains hiring nel personnel files. Initial Beverley Regional Sol., Worrell, R. setting salary Dept, Labor, Atlanta, rates for each of the Ga., F. Richard individual Schubert, Labor, Fields’ stores is conducted Margolin, Sol. Bessie by regional personnel either Labor, Clauss, Dept, director Carin Ann U.S. by representative or of the New York plaintiff-appellee. Washington, C.,D. addition, office. In the New York office TUTTLE, Before WISDOM and SIMP- periodic detailing salary issues directives SON, Judges. Circuit ranges appropriate geo- for different graphical employees. areas and classes Judge: SIMPSON, Circuit wage Finally, all increases are appeal approval We review on by regional decision to per- either arising below a case under by sonnel director or the New York of- Pay provisions Fair Labor Stand- fice. U.S.O., 206(d). 1. 29 § result of violations of the “unpaid denominated minimum un- or provisions U.S.C., 2. Under of 29 paid compensation.” overtime 206(d) (3) owing amounts aas of its retail outlets in Florida —those in The Local Retail Outlets B. Gallie, Island, Eau Merritts and Talla- are each The individual Fields stores Secretary’s allegations hassee. The substantially Manager As- headed and two Store (1) as follows: that male Managers. de- Each of the sistant Store Supervisors generally softline Area partments headed within the store is paid more than their female counter- Supervisor (also to as an Area referred *3 parts; (2) that male hardline Area Su- Manager). Department Fields follows a pervisors generally paid were more than industry-wide apparently is what an counterparts; (3) their female that soft- practice dividing departments into of its Supervisors generally line Area male; fe- categories goods hard- two —softline (4) Super- that the softline Area goods. line are included softlines generally paid visors were less than the clothing (cribs, and infant accessories Supervisors; (5) hardline Area furniture, mattresses). de- The hardline there was no basis a distinction be- partments goods contain all other tween Super- hardline and Area softline cosmetics, (housewares, sold Fields purposes Equal Pay visors of the automobile accessories and numerous Secretary alleged Act. The lines). other knowledge Fields provi- had had of the Supervisors The function of Area Equal Pay during sions of the departments in the hardline and softline period violations, entire of the and there- roughly similar, is of save matter fore, that the vio- violations wilful ordering replenishment basic stocks. The purposes lations for the of the Portal-to- re-ordering goods is of most softline Act, 29, U.S.C., 255(a); Portal Title § by computer pre- handled a is fed which and that exposing this had the effect of punched portions of tickets removed sales possible liability Fields to pay- purchas- cashiers when the items are ment of minimum and overtime Re-ordering goods ed. of hardline year (rather for a three year than a two part, upon physical based, for the most period in the case of non-wilful viola- counts of merchandise hand. tions) period prior to commencement of Supervisors depart- in the hardline Area Secretary’s suit. responsible ments are for these counts. Fields’ answer asserted that it had not Managers in both hardline and softline wilfully violated the Act in that it had departments cognizant must be of fast- among not intended to discriminate its moving accordingly. items and reorder Supervisors according Area to sex. alleged that it had hired its Su- II. THE COMPLAINT pervisors going at the market rate and compensation solely On June had been filed a based complaint going alleging upon market rate and that Fields had violat- continuing ed sex. Fields further was in answered there violation 6(d) awas basis for Sections and 15(a)(2) of the differentiation Fair between managers Labor hardline and Standards Act3 in at softline least three based 6(d) sponsibility, FLSA, performed 29, U.S.C., Section of the and which Title un- * * 206(d), provides, pertinent part: working conditions, § der similar *. (d) (1) employer having 15(a)(2) employees FLSA, No Section Title any provisions U.S.C., 215(a)(2), provides pertinent of this section discriminate, part: any shall within establish- employees (a) expiration ment which such are em- After of one hundred ployed, employees twenty days between on the basis of it from June by paying wages person— sex any shall such be unlawful for (2) any provisions establishment aat rate less than the rate to violate pays wages at title, which he section 206 or section of this or opposite any provisions regulation sex in such establishment or equal jobs performance work on order of the Administrator issued under * * requires equal skill, effort, title; which and re- section 214 of this *. Supervisor responsibility could required Area such that the two on the skill and compared respective positions. Particu- these respect un- Act.8 This lar reference was made ordering dergirded by Findings of Fact Nos. to the different methods goods prevailing types de- and 9: the two partments, hardline and softline. ordering 8. The method of imposes departments on those hardline THE
III.
OPINION BELOW
responsi
Supervisors
added
Area
bility
required
substantial
which
a
This district
entered
portion
working time.2 [Foot
their
supporting
fact
and conclusions
law
Smith,
Peggy
note 2 read: “Witness
Secretary’s position.
the main the
supervisor
testi
Tallahassee hardlines
court found
the existence
discrimina
day
spent
fied
that she
four hours
upon
particulars
tion
based
sex
some
*4
working
preprint
books.”]
the
inv
each of
three Fields
stores
olved.4
The court also found that
the
responsibility requir-
9. The skill and
Supervisor
duties of
Area
the hard
managers
ed of
is substan-
hardline
departments
line and softline
differed so
tially greater
required of
than that
substantially
in terms of
re
skill and
**
*
managers.
[Empha-
softline
sponsibility
require
being
their
as
con
sis added.]
unequal
purposes
sidered
for the
urges
only
appeal
Fields
on
that we
Act.5 The court concluded as
adopt
findings
the
the
district court’s
of law
matter
that
the discriminations
wages
hard-
existence
a distinction between
sexes
between
constituted viola
managers,
Pay
and softline
that
Equal
tions of
line
but also
the
Act.6 The court
expand
scope
we
concluded
the softlines cate-
further
that
the discrimina
gory to include
and domestics.”
tions
“curtains
were unintentional
and therefore
urges
appeal,
Secretary
purposes
On cross
wilful for
of the Portal-
29,
that
Act,
255(a).7
to-Portal
the distinctions
hardline
Title
between
U.S.C. §
managers’
jobs
and softline
mini-
are so
judgment
The district
required
court
being
require
mal as to
their
considered
withholding
to refrain from
mini-
equal
Pay
Equal
for the
mum
compensation
and overtime
Act.
from the
found to have been
object
Act,
of'the
violations
and
begin
noting
by
We
enjoined
committing
Fields from
Findings
9,
of Fact numbered 8 and
and
violations of the
any
Act
“.
.
.
conclusory
pre
22 are so
nature as
of its
operation
stores now in
and here-
necessity
applying
clude the
of our
operated
after
parties
it.”
ap-
Both
“clearly erroneous” standard of Rule 52
peal from
findings,
conclusions and
(a), F.R.Civ.P.,
Baumgart
on review.
judgment. We now consider
the issues
States,
ner
1944,
665,
v. United
322 U.S.
appeal.
raised on
1240,
1525;
64 S.Ct.
88 L.Ed.
Shultz v.
Co.,
1970,
Wheaton Glass
3 Cir.
IV. THE HARDLINE/SOFTLINE
267.
situation
this
we are re
DISTINCTION
quired
only
to consider
whether the find
The district court found
ings
there ex-
light
are
pro
correct
isted a distinction
jobs
between the
Equal Pay Act,
visions of
regula
hardline
Supervisor
Area
and
thereunder,
softline
prior
tions
decisions.
Hodgson
4.
Fields,
v. J.
M.D.Fla.1971,
M.
6.
Id. at
Conclusion of Law No. 2.
F.Supp. 731,
732-733, Findings of Fact
Nos. 10-20.
7.
Id.
Conclusion
Law No. 4.
Findings
5.
Id.
8, 9,
of Fact
Finding
Nos.
and 22.
Id.
of Fact No. 22.
regulations
equal pay
promulgated
mandates
Department
jobs
performance of
re-
“the
which
of Labor under
the E.P.A.
skill, effort,
responsi-
quires equal
state that “skill
includes consideration
performed
training,
of such
bility, and
under
as experience,
which
factors
working
education,
ability
.
similar
conditions
.
.”
.
.
.”29
*
* *
29, U.S.C.,
(E.P.A., Title
206 C.F.R.
800.125. The
§
evidence indicates
§
Regula-
added).
(d)(1). Emphasis
requirements
no
posi-
additional
promulgated by
Department
manager
tion of
hardline
tions
based
Labor,
provide
seq.,
Indeed,
et
these
800.0
factors.
C.F.R.
as
§
evidence
training
[skill, effort,
precisely
and re-
contrary:
“The terms”
that:
managers
sponsibility]
consti-
softline
“are considered to
received more ex-
tests,
training
separate
spent
each
which
tensive
tute three
terms
time
training
equal pay
program.
order for
Thus,
must be met in
over-
apply.”
(29
finding by
turn the
standards
C.F.R.
800.-
the district
122).
job
manager
requir-
hardline
ed more skill than that of softline man-
We noted
Brook
ager.
support
Such a
is without
Hospital,
haven General
5 Cir.
record.
this
Secretary
of La
F.2d
Because the
permit
of fact
proving “equality
bor has the burden of
no
part
conclusion on oúr
ele-
to the
inequality
pay.”
work
In meet
of responsibility
ments
in-
effort
burden,
is,
how
managerial
volved in
posi-
the different
*5
ever, required only
jobs
to show that
the
tions,
findings
we remand for
“substantially
under consideration
are
on
points.
these two
Our concern in this
equal,” Hodgson
Supply Co.,
v. Fairmont
job equality
area of
between the two
F.2d
think
Cir.
493. We
Supervisors
primarily
kinds of Area
is
Secretary met
the in
the
his burden in
sweeping
with the
of
nature
the district
case. He
that
the Area
stant
showed
finding
job inequality
court's
of
and
Supervisors
both
in
soft-
hardline
and
meager
support
the
findings
in the
of
departments
responsible
line
were
pronouncement.
fact for such a
The dis-
ordering merchandise,
assisting
cus
example
trict court
found for
the
that
purchases,
their
tomers with
and for
ordering
method of
in the hardline de-
maintaining
orderly
properly
and
dis
partments
por-
consumed a substantial
played racks of merchandise
in their re
working
tion of the
hours of the hard-
spective departments.
This showed that
managers.
support
line
In
of
find-
this
jobs
“substantially
equal.”
the
ing
court
the
cited the fact
man-
that
the
ager
principal
departments
factor
in
of one of the hardline
involved
the
spent
district
in
court’s decision
one
the
that the hard
Fields’ stores
four
managers’
jobs
day reordering
depart-
line and softline
hours a
were un
for her
equal was
ment.9
the different method of order
This did not
rebut
Secre-
the
ing replacement
tary’s
prevailing
proof
job equality,
merchandise
not
does
types
departments.
support
the two
Con
a
man-
that all hardline
light
agers
tripartite
sidered in
departments
spend
the
test
all hardline
job equality,
equal
reordering
substantial
it
cannot
amount of
be
time
said
Requisite
that
two
differed
methods
in merchandise.
to such
find-
proof
single
terms
skill
involved. The record is
that
this
hardline
(cid:127) unsatisfactory
Supervisor's
as
experience typifies
to the existence of a Area
possible ground
sustaining
requirements
job
a blanket
of man-
of hardline
ager;
distinction
manager,
between hardlines
soft-
that
the housewares
garden
based
responsi-
manager,
lines
on either
shop
effort or
the automotive
bility.
manager, and
the other
all
hardline man-
Finding
thereto, text, supra.
of Fact No. 8
Note 2
agers
provisions
ex-
required
effort
from
to exert
this
themselves
FLSA
are
change
pay.
record
for a raise in
their stocks—and
in order to maintain
managers
em-
further,
disclosed
addition
the softline
there
sought
spend
ployer
similarly required
this
and secured advice of
had
arrangement
checking
would in
the stock
counsel that
of time
amount
exempt
Any
from the
departments.
lesser amount
fact
their
Judge
speaking
Wisdom,
support
dis
proof
the broad
FLSA.
would
following
court, proposed
ex
as the test
court to
the district
tinction found
applied
positions.
in cases con-
Accord
of wilfulness
two
ist
between
liability for violations
ingly,
cerned
civil
the case to the district
with
remand
we
findings
simply,
most
the com
of the FLSA: “Stated
for further
Did
em-
degrees
responsi
parative
think
test should be:
of effort
pic-
ployer
bility
supervision
the FLSA was
of hard
know
required
Judge Wisdom
departments.
add
ture?”
Id. at 1142.
We
line and softline
history
legislative
company-wide
stated:
“The entire
admonition
distinguishing
of the FLSA
practice
the 1966 amendments
hard-
between
liberalizing
intention on
indicates
is no basis without
lines and softlines
Congress.
employers
part
Requiring
for a conclusion
existence
more
possi-
than
requisite
have more
awareness of
distinction
applicability
ble
FLSA would be
Isles Conva
v. Golden
E.P.A.
Homes, Inc.,
inconsistent
Id.
with
intent.”
lescent
5 Cir.
explain
1256. The district court should
case,
In
the record
the instant
finding distinctions be
its reasons for
sent
discloses that Fields’ central office
used
tween hardline and softline
terms
managers
memoranda to its district
Regulations.
difficult
if not
It is
managers advising
store
them of
im
properly
impossible for us
to evaluate
plementation
E.P.A.,
and of the
on
district court
and conclusions
addition,
requirements
Act.
other
review
basis.
regional
managers
personnel
Fields’
periodic
under
ex
instructions
make
*6
V. WILFUL OR NON-WILFUL
personnel
aminations of the
files of the
VIOLATION?
any possible
report
Fields
and to
stores
decided
matter
district court
aas
violations of the
New York
E.P.A. to the
of
the
law that Fields’ violations of
This was sufficient
establish
office.
purpose
Act
were
wilful
the
that Fields
“that the
in
knew
FLSA was
three-year
of the Portal-to-Portal Act’s
picture.”
In
defense of the district
statute of limitations on claims for mini-
finding
argues
court
Fields
that the ran
wages
U.S.C.,
mum
overtime
and
due. 29
pattern
wage
dom
discrimination to
255(a). The determination was rather
gether
per
se vio
with
cessation
mere-
that the discrimination found was
prior
of the Act
to trial indicates
lations
ly
prac-
the unintended result of Fields’
negligent and
the violations were
wage
hiring persons
tice of
at whatever
apply
test as enunci
not wilful. We
urges
it could. The
cross-
on
Farms,
Jiffy
supra,
in
as the
ated
June
finding
appeal that
district
court’s
exceptions for
test.
allow
correct
To
contrary
question
of wilfulness is
in situations
“random” discrimination or
holding
Jiffy
to our
in Coleman v.
June
charged
employer, once
with
where an
1139,
Farms,
458 F.2d
Inc., 5 Cir.
violating
Act,
corrects the unlawful
rendered
five months after
some
sap
the E.P.A.’s
practice,
much of
would
entered
and conclusions were
vitality.
cre
Such a construction would
the instant case.
unnecessary problems
future
ate
Farms,
Jiffy
attempting
In
a
the Act.
June
considered
courts
to construe
violation of
Fair Labor Standards
determine that
district
We
occurring
of a
erred in
Fields’ violations
within the context
bargaining agreement
purposes collective
in which
wilful
agreed
exempt
three-year statute
had
Portal-to-Portal Act’s
ployer
any penalty
past
direc-
remand with
We
his
limitations.
vio-
judgment
modify
says:
merely
so as to
It
tions to
lations
the law.
requires
and minimum
do
overtime
the future
what the
allow
law
you
period
years
injunction
three
from
for a
shifts the
do.
responsibility
compliance
of action accrued.
the date that the cause
onto the
*
**
employer’s shoulders.
THE
INJUNCTION
Wage
CHAIN-WIDE
VI.
Hour
and
Division cannot rea-
sonably
charged
responsi-
be
with the
enjoin-
by its decree
The district court
bility
checking
past
on
back
viola-
violating
provisions of
ed Fields from
they
obeying
tors to make sure that
Act “in
of its stores
economy
the laws. Fairness
and
ad-
operated
operation
and hereafter
now
”
ministrative
effort both dictate that
challenges
by it
.
.
.
here
employer
an
after
has once violated the
injunction
of a chain-wide
the issuance
responsi-
Act he should bear his own
urges
case,
of the instant
the facts
bility for the future.”
sup-
injunction
In
that the
modified.
Co.,
supra,
Wirtz v. Ocala Gas
injunction
port
district court’s
F.2d at
we noted further:
Secretary points
out that the violations
injunctions]
“Inasmuch as [the
are a
in the context
the instant case occurred
general
effecting
compliance
means of
wage
supervision over
of close centralized
policy
expressed
with national
Con-
pay policies in
the individual
scales
gress,
they are to be utilized in
urges
stores,
in-
that a chain-wide
light
Act,
junction
aid
appropriate to restrain
what
of the administrative
efforts at en-
apparently
company policy
been a
had
forcement,
grudgingly.”
and not
setting
wage
regarding hiring
See
our statement
scales.
Savings
Ass’n,
First Federal
and Loan
the rubric that
start with
We
Cir.
injunctive
granting
FLSA
relief
“courts should not be loath to issue in-
a
the sound dis
suits is matter within
junctions
general applicability.”
We
judge. We will
cretion of the district
injunc-
the context
review
in which the
injunction
modify
not overturn or
light
tion in the
instant
issued
case
showing of
suits
clear
such
without
principles.
of these
In determin
of that discretion.
abuse
vel non of an
the existence
abuse
Fields,
stated,
has more than
poli
necessary to examine
discretion it
sixty
in its chain. Evidence in
stores
pur
underlying the
and the
cies
FLSA
troduced
Fields’
at trial
indicated that
injunctions
poses
in suits un
served
hiring
wage
policies
Co.,
Ocala Gas
der
FLSA. Wirtz v.
significant
de
centralized control of
*7
236,
1964,
240.
5
Cir.
gree.
hardly
It
of discre
was
an abuse
1962,
the dis
Goldberg
tion in
circumstances for
these
Cockrell, 5 Cir.
See
v.
corpo
enjoin
811, 814,
trict court to
as
considered
F.2d
where we
303
than to enter a
injunction
defendant
rather
rate
context
the role
injunction against
individual
limited
of the FLSA:
in violation of the
injunction
found to be
stores
cases
“Issuance
Pay
Equal
It
frustrate the
Act.
would
an em-
as-
not
such
these does
may
wages
proven.
justified by
be
This
rule
approach
can be
this state-
10. This
was
avoiding punish-
justified
opinion:
basis of
meat
in the
“ *
*
*
ignorant
the law
regu-
are
ment of those who
most statutes
Unlike
them;
applies
lating
to
conduct,
that
it
do not believe
Fair Labor
or
Standards
effectively
if
carry any
enforced
no
can be
sane-
but
law
immediate
not
does
repeated
employer
make
gives
to
individuals
are allowed
one
it
each
tion.
In effect
impunity.
unex-
One
it with
proof
is
violations of
he
of violation
free offense: on
enough.”
plained
F.2d at
repayment
is
offense
of the
at
for
liable
most
paid
originally
his em-
814.
have
he
should
that
unpaid
ployees,
that
extent
to
broad
opinion
1973,
FLSA in
in-
16,
suits
Court's
of November
volving large corporate
passed upon.
with
defendants
is not
operations
require
extensive branch
Secretary
The
of Labor’s alternative
investigate
prove
petition
rehearing
granted
to the
is
substantially
violations
all or
all of the
paragraph
extent
the last
of the
justify
issu-
defendant's branches to
body
printed slip
page
opinion,
injunction.
ance of a chain-wide
Con-
16, commencing with the
“The
words
”
necessity
siderations
administrative
* * *
language
injunction
“
persuasive
warranting
as
chain-
*
**
ending
with
words
injunction
Again
wide
issued
below.
Hodgson
Corning
Works, 2
Cf.
v.
Glass
quote
Co., supra,
Wirtz v. Ocala Gas
1973,
overly respect: broad one injunction
district framed its apply merely terms class of involved the instant
litigation, Supervisors, Area but as employees. well to all Fields’ There was proof
no
of discrimination
classes
Supervisors,
other than Area
accordingly
we direct
the terms
injunction
be modified to limit its
SIMPSON, Jr.,
Nelson
Plaintiff-
applicability
employees.
this class
Appellant,
language
injunction
contained
v.
against
further violations of the
CORPORATION,
SPERRY RAND
Act should be modified
substitut
Defendant-Appellee.
Supervisor”
the term “Area
No. 73-1716.
“employee(s)”.
term
Cf.
Corning
Works, 2
Glass
Cir.
Appeals,
Court of
United States
—
granted,
-,
F.2d
cert.
U.S.
Fifth Circuit.
(1973).
94 S.Ct.
ther consideration.
ON PETITIONS FOR REHEARING
AND FOR PETITION REHEAR-
ING EN BANC
PER CURIAM:
The motion of the of Labor paragraph strike last